Private Religious Schools Have Long Been Targeted by Governments

New York City is gearing up to tighten state controls on the curriculum at private schools for Orthodox Jews known as yeshivas.

Some activists against these so-called "ultra-Orthodox" schools claim that they spend too much time on religious and cultural instruction, and too little time on more "secular" topics.

The city has now taken up the cause and plans a wide-ranging review of yeshivas.

According to state regulators, "religious schools are expected to understand what's required of them, to cooperate with investigators, and to make instructional changes that are deemed necessary."

In cases where schools do not comply, they will be closed by imposing mandates on the parents themselves: "Should the parents or persons in parental relationship to the students fail to comply with the Commissioner’s directive to enroll in a different, appropriate educational setting, the students will be considered truant."

Not surprisingly, the new threats have led to many non-Jews expressing concerns as well. Catholic schools, for instance, are concerned that the new regulatory drive will lead to more control over private schools in general:

We remain gravely concerned over the process, which will likely lend itself to an inconsistent and subjective review of many schools,” Jim Cultrara, the director for education at the New York State Catholic Conference, said in an interview.

Familiar Territory

The city's attempt to dictate to private schools what they will teach is just the latest salvo in the long war between governments and the private sector in education.

Historically, public education has long been geared toward promoting cultural uniformity, assimilation, and a pro-government ideology in students. Private schools, on the other hand, have often been founded specifically for the purpose of offering an alternative to the public schools. They have often focused on teaching a culture and curriculum different from that offered in the government schools. Often, these institutions either directly or indirectly encourage skepticism of the cultural and ideological norms pushed by public schools.

These norms, of course, have changed substantially over time. In the past, for example, public schools were used to push various types of Protestantism — as represented in in-class use of the King James Bible — and an ideology devoted to promoting political unity and obedience to government. A daily recitation of a loyalty oath, known as the "Pledge of Allegiance" was a key ritual in this effort.

Needless to say, governments have never been enthusiastic about the existence of competing educational institutions that promote a different worldview from that desired by government policymakers.

Even worse — from the private schools' standpoint — is the fact that policymakers have often been able to count on support from both conservative and leftist groups that fear or disdain the "otherness" of these schools. We see this right now in the yeshiva controversy as the Jews involved are labeled as "ultra-Orthodox," which suggests they are religious extremists of some kind. After all, the adjective "ultra" has never been a compliment in American political discourse.

The implied solution, of course, is to make these yeshiva schools more secular, more mainstream, and more "normal."

The War Against Private Christian Schools

These same arguments were once used against Christian private schools.

By the early twentieth century, American public education reflected a watered-down version of Protestant Christianity. But the religious elements existed largely to offer a patina of religious morality behind what was primarily ideological education. The most important role of the schools was to make students into good citizens of the American polity.

Private religious schools, however, didn't necessarily play this game.

Both Lutheran and Catholic groups in the Midwest, for example, often placed more emphasis on religious education, while even helping to perpetuate the values of the immigrant groups supplying students to these schools. Lutheran schools in the Midwest, for example, perpetuate use of the German language and the Lutheran religion. Many saw this as coming at the expense of cultural assimilation and "loyalty" for American governments.

Even worse were the Catholic schools which perpetuated religious and cultural views that were regarded by the Protestant majority as even more alien than those of the Lutherans.

Thus, there had always been a tension with institutions of private religious education, but matters were made worse by the First World War.

So, it was not an accident that some of the greatest threats to private education yet seen would arise during the 1920s.

In the 1920s, conservative Protestants staged the most concerted campaigns since the origins of public school systems to prohibit private education. In more than a dozen states they tried but failed to prohibit attendance at private schools, while in Oregon they successfully enacted a law compelling students to attend public schools exclusively. These campaigns emerged from a post-World War I context rife with nativist, anti-Catholic sentiment.

In one of the more notable cases, anti-private-school activists (known as the "Public School Defense League") in Michigan attempted to outlaw private schools through the legislature. Both Catholics and Lutherans united to defeat the measure. Later, the League attempted to outlaw private schools through a referendum on the 1920 statewide ballot. That also failed.

The effort, however, inspired Scottish Rite Masons and the Ku Klux Klan to band together to push a private-school ban on the 1920 ballot. They succeeded. The ban, according to Gross,

compelled children ages eight to sixteen to attend public school, exempting children physically unable to attend school, children living at too great a distance from a public school, and children who received private tutoring, so long as they received annual written permission form the county superintendent and sat for a quarterly examination. Noncompliant parents faced heavy fines and imprisonment.

Private Education as Private Property

The Oregon law, however, was not long for this world. It was struck down by the United States Supreme Court in Pierce v. Society of Sisters in 1925.

The arguments made by attorneys for the State of Oregon were the typical "do it for the children" claims. According to the State, parents simply couldn't be trusted to educate their children properly. More specifically, since today's school children are tomorrow's voters, the State argued, the State has an overriding public interest in ensuring that the students receive a proper education. (What is proper, of course, is to be determined by the government.)

The answer, apparently, could be found in forcing parents to send their children to the (presumably higher-quality and more competent) government schools.

The US Supreme Court eventually disagreed.

The decision, however, was not based primarily on notions of religious freedom or "freedom of conscience," or other amorphous legal concepts that are so popular in political discourse today.

While its true that the majority opinion ruled that school children are not "the mere creature[s] of the state," it also ruled that granting total monopoly power to state schools constituted a violation of the property rights of both private schools and the families who used them.

After all, the ban on private schools did not just affect students and their parents. It also affected all private schools, many of which were not religious schools, but were business enterprises.

These private schools argued against the Oregon law on the grounds that the law deprived schools of their right to contract with parents and to use their property to freely provide goods and services.

The property-rights foundation of the Pierce decision can also be seen in the 1922 Supreme Court case Meyer v. Nebraska.

In Meyer, the state had been sued by a school teacher who contended he had a right to provide school lessons in the German language. Meyer had been leading class in German at Zion Evangelical Luthern parochial school in 1920. This was in violation of a 1919 Nebraska law which was partly motivated by anti-German hysteria, and which was designed to combat the "baneful effects" of allowing immigrants to educate their children in languages other than English.

Once his fondness for teaching in the German language was discovered by authorities, Meyer was fined by the state. He then allied with the Missouri Synod Lutheran Church and sued the state.

In 1922, the US Supreme Court ruled against the State of Nebraska, but not merely on "religious freedom" grounds. According to Justice McReynolds, liberty properly understood,

"[w]ithout doubt...denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men."

As with Pierce, "the right of the individual to contract" would be an important issue, and it was basically a private property issue. Parents, the Court ruled, had a right to freely enter into contracts with others to provide instruction in a variety of ways and a variety of languages.1

The Right to an "ultra-Orthodox" Education?

It doesn't require an especially large leap of the imagination to see how today's yeshivas remain in a place similar to those of the German-language schools and Catholic schools of 100 years ago. They seem alien. They're different. They're not "mainstream."

But does this mean the parents and the children have no right to attend schools of this sort? Does the lack of similarity between yeshivas and New York City public schools mean the right of parents to contract with these schools is forfeit?

Clearly, some New York officials believe so. Although New York City public schools are not exactly an unbridled success story, the city contends it must intervene in order to ensure the yeshivas better prepare students for the workforce.

Note, however, that critics are not claiming that students are in physical danger, or that the alleged lack of education leads to a public health menace or to any significant burden on the state in the form of criminal prosecution or welfare costs.

Instead, critics focus on anecdotal claims that graduates have a hard time finding a job after graduation.

Given this, it's hard to see how the current campaign against the yeshivas is fundamentally different from the old attempts at restricting or abolishing education at private schools for little more than the fact those schools offered instruction that was deemed too unusual or too different from the established public school instruction.

1. Gross writes that for decades it was popular to point to the court's liberal leanings in opposing the Oregon law in Pierce. Later revisionists, however, have contended that the right to contract, and other laissez-faire considerations, were more influential in the Court's Pierce decision.

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